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Judges Guide SENTENCING GUIDE MASSACHUSETTS SENTENCING GUIDELINES Massachusetts Sentencing Commission The Honorable Robert A. Mulligan, Chairman February, 1998 Massachusetts Sentencing Commission Three Center Plaza, 7th Floor Boston, Massachusetts 02108 Telephone (617) 788-6867 FAX (617) 788-6885 Executive Director Francis J. Carney, Jr. Table of Contents Introduction STEP 1 Determining offense seriousness level. STEP 2 Determining criminal history category. STEP 3 Locating appropriate guideline grid cell. STEP 4 Imposing incarceration sentence. STEP 5 Imposing non-incarcerative sentence. STEP 6 Departing from sentencing guidelines. STEP 7 Mandatory minimum sentences of incarceration. STEP 8 Determining nature of sentence. STEP 9 Recording a sentence. STEP 10 Appealing a sentence. Attachment A Level of injury scale Attachment B Mini-master crime list Attachment C Sentence length chart Attachment D Mitigating/Aggravating circumstances Attachment E Mandatory offenses Guideline Sentence Form Criminal History Groups Sentencing Guidelines Grid 1 2 Introduction The Massachusetts Sentencing Commission was established in 1994 by the truth in sentencing law as a response to the escalating concern for sentencing reform. The goal of the commission is to promote truth in sentencing by developing uniform sentencing guidelines, including guidelines for the appropriate use of intermediate sanctions. On April 11, 1996, the commission submitted its Report to the General Court, culminating an intense two-year effort of research, debate, and deliberations. The result is a comprehensive and balanced set of guidelines that will provide greater uniformity and certainty in sentencing so that victims and offenders alike will understand the meaning and effect of the sentence imposed. The guidelines will promote fairness and reduce disparity while preserving that degree of judicial discretion necessary to fashion the sentence appropriate for the individual offender and the specific offense. The Report to the General Court, which was unanimously adopted by commission members, presents the philosophical and policy bases for the guidelines. The recommendations of the Report have been incorporated into the sentencing guidelines legislation, which is presently before the Legislature. If passed, the policies and procedures contained in this Sentencing Guide would become effective. Until then, they should be considered proposed policies and procedures. The purpose of this document is to provide a practical guide for the application of the guidelines in sentencing a convicted defendant. Ten specific steps are set forth and a set of attachments is included for reference. The objective is to give “hands-on” directions for making the sentencing guidelines operational. The audience is intended to be judges, prosecutors, defense counsel, probation personnel, and others concerned with the practical application of the sentencing guidelines. 3 4 1. OFFENSE SERIOUSNESS Determining the offense seriousness level of each current conviction by referring to the Master Crime List. 1 The Master Crime List contains over 1,800 offenses, each ranked and placed into one of nine levels of seriousness. To determine the offense seriousness level of a particular crime, locate the offense on the Master Crime List using either the offense name (offense) or General Law reference (offense reference). The offense seriousness level is indicated to the left of each entry. Where multiple offense convictions result from the same criminal conduct, the most serious offense according to the rankings in the Master Crime List should be treated as the governing offense for determining the base sentence. Considerations U STAIRCASING Some crimes broadly defined to encompass a wide range of behavior were staircased (i.e., placed at more than one level on the sentencing guidelines grid) based on a specified factor. These offenses are identified by a notation on the Master Crime List. When offenses are staircased, determine the appropriate level by taking into account: • the value of property lost (e.g., Larceny); or • the degree of injury to victim (e.g., Assault and Battery with a Dangerous Weapon); or • the display of a gun (e.g., Armed Robbery); or • dwelling versus non-dwelling (e.g., Breaking and Entering). ILLUSTRATION 1: An Assault and Battery with a Dangerous Weapon resulting in no or minor injury has been placed at offense seriousness level 3; resulting in moderate injury at offense seriousness level 4; and resulting in significant injury at offense seriousness level 6. Degree of injury is defined in Attachment A. 5 1. OFFENSE SERIOUSNESS U RANKING MISDEMEANORS If a misdemeanor does not appear on the Master Crime List its offense seriousness level may be determined by its maximum sentence by statute, such that: • Level 2: Maximum statutory penalty of incarceration for more than 6 months up to and including 2 1/2 years. • Level 1: Maximum statutory penalty of incarceration for 6 months or less. U SECOND AND SUBSEQUENT CONVICTIONS There are certain offenses for which the statute sets forth a more severe penalty upon a second or subsequent conviction (e.g., Assault to Rape). In these cases the offense has been elevated one level on the offense seriousness scale. ILLUSTRATION 2: The offense of Assault to Rape has been placed at offense seriousness level 6. The offense of Assault to Rape - Subsequent Offense has been placed at offense seriousness level 7. Where the offense is already at Level 8 (e.g., Home Invasion) and could not be elevated one level, the guidelines call for the offender to be moved over one cell to the right. U OFFENSES PUNISHABLE BY FINE ONLY The guidelines do not apply to offenses punishable only by a fine (e.g., failure to report hazing). For purposes of criminal history, these offenses have been assigned to offense seriousness level 1. 6 2. CRIMINAL HISTORY CATEGORY Determining the defendant’s criminal history category. 2 Based on the number and seriousness of prior convictions, offenders are to be placed in one of five criminal history categories: No/Minor Record, Moderate Record, Serious Record, Violent or Repetitive Record, or Serious Violent Record. The commission adopted an incident-based approach for determining placement within a criminal history category. This means that multiple prior convictions with the same arraignment date are presumed to have arisen from the same criminal conduct, and are to be counted as one prior conviction based on the most serious offense of conviction. The presumption that several offenses arraigned on the same date arose from the same criminal conduct is rebuttable. A conviction is defined as any final disposition requiring a finding of guilt. Examples of final dispositions considered to be convictions include: Guilty Filed; Guilty; Probation; Fine; House of Correction Commitment; State Prison Commitment; Split Sentence; and Suspended Sentence. Examples of final dispositions not considered to be convictions include: Dismissed; Continued Without a Finding; Filed (absent a finding of guilt); and Not Guilty. The commission established a policy that prior convictions should only include those offenses which reached final disposition prior to the disposition date of the current offense for which the defendant is being sentenced. To place a defendant into a criminal history group: • Group defendant’s prior convictions by arraignment date into criminal incidents; • Using the Master Crime List, assign an offense seriousness level to each criminal incident based on the most serious offense of conviction; • Record the number of criminal incidents at offense seriousness level 9, level 8, level 7, ... level 1. • Using the criminal history definitions, assign the defendant to the appropriate criminal history category. 7 2. CRIMINAL HISTORY CATEGORY All delinquency adjudications for offenses in level 7, 8, and 9 should be treated as prior convictions purposes of determining the criminal history category. In addition, all federal or out-of-state convictions should be translated into the equivalent Massachusetts offenses and included. Considerations U STAIRCASING/PRIOR CONVICTIONS Where a prior conviction is for a crime which has been staircased, if none of the staircasing factors such as amount stolen or lost, injury, display of gun, or dwelling/non-dwelling is ascertainable, the conviction should be assigned the lowest seriousness level for that crime. ILLUSTRATION 3: A defendant has a prior conviction for Assault and Battery with a Dangerous Weapon, though the degree of injury to the victim is unknown. This conviction should be placed at offense seriousness level 3, the lowest of the three seriousness levels to which a conviction for Assault and Battery with a Dangerous Weapon may be assigned. U MULTIPLE INCIDENTS/SINGLE ARRAIGNMENT DATE The presumption that several offenses arraigned on the same date arose from the same criminal conduct is rebuttable. Multiple convictions with the same arraignment date may each be counted for purposes of criminal history placement on the sentencing guidelines grid where the court is satisfied that each such conviction represents separate criminal conduct. U SINGLE INCIDENT/MULTIPLE ARRAIGNMENT DATES Multiple convictions with different arraignment dates may be treated as the same criminal conduct for purposes of criminal history placement on the sentencing guidelines grid where the court is satisfied that such convictions represent the same criminal conduct. U MINI-MASTER CRIME LIST To guide the determination of a defendant’s
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